DHARMOO Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) Through the currency of this revision, the petitioners, Dharmoo and Badri, seek the reversal of judgment dated 5-2-2003 passed by the Judicial Magistrate, Chenani, by virtue of which the petitioners have been convicted for offence under Sections 457/380, RFC and sentenced to simple imprisonment for two and half years and a payment of fine of Rs. 5,000/- each; and further in appeal, conviction confirmed and sentence modified by the learned Sessions Judge to simple imprisonment for a period of nine months and a fine of Rs. 1,000/-, vide his order dated 28th July, 2003.

(2.) The facts relevant for the disposal of this revision put tersely are that both the accused-petitioners were charged to stand their trial for the commission of offence contrary to Sections 457/380, RFC on the allegations that on the night intervening 22/23 January, 1998, the accused forced their entry by breaking open the shop of the complainant, Thakur Dass, at Madha Chenani and removed a box of Biddis, a box of Panama Cigarettes, a bag of plastic shoes and one BPL tape-recorder and some cash, thereby committed burglary. The complaint, Thakur Dass, along with his minor daughter Rama Devi and his sister Sham Dehi, was sleeping in his shop and woke up and saw the accused committing the burglary, but did not gather courage to protest or resist the act of the accused, obviously, out of fear and actuated by instinct of survival and went inside the adjacent kitchen for safety. The trial Court, after recording the evidence and hearing the parties, found the accused guilty of offence and, consequently, convicted and sentenced in proof of offence under Sections 457/380, RFC. That order was further upheld with modification of the sentence by the Appellate Court.

(3.) Mr. Babu Ram Sharma, learned counsel appearing for the petitioners, challenged by legality and propriety of the judgment and order of the Appellate Court upholding the conviction awarded by the trial Court and sentencing the petitioners for nine months and fine of Rs. 1,000/- to each of the accused, on variety of grounds. It is stated that the trial Court has not appreciated the evidence in its proper perspective and recorded the conviction without any basis. The evidence adduced by the prosecution is stated to be interested contradictory in material particulars and smack of partisanship, therefore, insufficient to record the conviction of the accused without corroboration with an independent testimony. It is further stated by the petitioners advocate that the evidence provided by the witnesses having seen occurrence with naked eyes is unbelievable, as none of them had resisted on seeing the accused entered by breaking open the shop and removing the merchandise during hight of alleged occurrence instead hid themselves in the kitchen, which is contrary to the normal conduct of human nature. It was lastly contended by Mr. Babu Ram Sharma, petitioners advocate, that sentence awarded does not commensurate with the magnitude of the offence and is highly excessive. Whereas Mr. A. H. Qazi, learned AAG appearing for the State, on the other hand, submitted that the statement of the witnesses is consistent, straight-forward, cogent and positive to connect the accused with the commission of the offence. The stolen merchandise have also been recovered on the disclosure statement of the accused and identified by the complainant. All the circumstances, when taken together, prove the guilt of the accused beyond any pale of doubt.